M. A. Wheaton, I. M. Kalloch, Jas. A. Kerr, and E. S. McCord, for appellants.

John H. Miller and Dorr & Hadley, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court.

Before discussing the question of infringement, it is important to determine the nature of the Jensen invention, and to ascertain how far the claims thereof are affected by the prior state of the art. The appellee contends that prior to that invention there was no automatic machine known or in existence which would successfully place caps on filled cans, and that, Jensen being the first in the art to devise a machine capable of performing that operation, his invention is pioneer in its character, and entitled to a broad construction. The appellants, on the other hand, contend that Jensen used devices and apparatus which had been in use in well-known prior can-heading machines, and that in his combination he did not produce any new ultimate result, and that his machine is not a pioneer can-heading machine. In that connection the appellants refer to the Edmund Jordan patent, No. 307,197, dated October 28, 1884, and to the George A. Marsh patent, No. 265,617, dated October 10, 1882. The first of these patents describes a machine having a segmental clamp chuck mounted on a vertical shaft controlled by a mechanism which gives it two motions-one horizontal, the other vertical. The chuck is composed of segments operated by a spring; the segments, when brought together, forming a circle, with a beveled mouth below, and an annular space at the top. It has two rotating tables-one for the purpose of feeding the cans; the other, for the purpose of feeding the caps. Cans and caps are placed on these tables by hand. The clamp chuck grasps a cap, swings over the can body, and places the cap thereon. The functions of this machine, as described in the claims, are: "First, to receive and retain a can cap; second, to grasp and hold the body of the can in a proper position; third, to force the cap of the can on the body; fourth, to release the headed can when these operations are completed. The Marsh invention is not automatic. It is a contrivance to be placed on a bench and operated by hand or by a treadle. Caps and cans are placed in position by hand. It contains a conical guide for inserting the upper end of the can into the cap. The Jensen machine contains an endless can-feeding belt for carrying the cans to the machine; arms swinging over the belt to regulate the direction of the cans to the feeder; a stop fixed transversely across the belt to arrest the forward motion of the cans, and change their direction; a feeder, which, by a circular, sweeping motion, transfers the cans. from the belt to the capping mechanism; a cap-feeding device, consisting of an inclined chute, and mechanism for supplying the caps one by one; a mechanism whereby each can releases its own cap, consisting of a stop in the cap chute; a trigger in the path of the cans, so arranged that the can operates the trigger and releases its cap; and a can-capping mechanism, consisting of two vertical reciprocating plungers, a conical guide for sizing the upper end of the can body, and transversely moving capping holding slides. The Jensen patent has

been before this court in prior litigation. In the first suit, which was brought against Jensen by Norton Bros., assignees of the Jordan patent, above referred to, it was held that the Jensen machine was an infringement on the Jordan primary patent, No. 267,014; the court holding in that case that the Jordan patent covered an invention of a pioneer character. Norton et al. v. Jensen et al., 49 Fed. 859, 1 C. C. A. 452. But in the suit brought by the Norton Bros. against Milton A. Wheaton, in which the complainants contended that a machine made by the latter infringed the Jordan patent, No. 267,014, it was held by this court, upon a full and complete showing of the state of the art, which had not been made in the case against Jensen, that the Jordan patent was not of a pioneer character, but was merely an improvement on prior devices. Wheaton v. Norton et al., 70 Fed. 833, 17 C. C. A. 447. It seems to be a fact established by the evidence now before us that, while the Jordan machine was slow and cumbersome, and was not adapted to extensive or rapid use in putting heads on unfilled cans, and was not, in practice, used at all for capping filled cans, it might nevertheless to some extent, at least, have been used for that purpose. So that while it cannot be said that the Jensen machine was a pioneer patent, in the sense that it was the very first to accomplish the result of heading filled cans, Jensen nevertheless was the first to successfully head filled cans with any practicable degree of speed or efficacy. He brought to success what prior inventors had essayed, and but very imperfectly accomplished. In so doing he adopted some devices that had been used before, combined them with others that had not been used, and added the necessary elements to make a practical and successful machine. His combination and invention was, we think, more than a mere improvement or perfection of what had preceded it. It was of such novelty and importance as to constitute a distinct step in the progress of the art, and it went into immediate and extensive use. Its claims are therefore entitled to a fairly liberal construction. Morley Machine Co. v. Lancaster, 129 U. S. 263, 273, 9 Sup. Ct. 299, 32 L. Ed. 715.

Considering seriatim the claims which are alleged to be infringed, we find in the first an endless traveling belt, a stop extending transversely across the belt, and spacing bars or arms swinging over the belt. This is a subcombination which accomplishes the preliminary step in the general operation of the machine by introducing the cans one by one into the heading machine. It is a combination of devices well known in machinery. The appellants contend that in their machine one element of this combination is omitted, namely, the stop, E, extending across the belt to change the direction of the cans. The appellee admits that the appellants' machine does not contain the stop bar, E, but contends that the device referred to in its claim as a stop is not limited to the form of stop specified, but includes and covers any form of stopping device; that any device which performs the function, whether it be called a "stop," or by any other name, is a mechanical equivalent of the stop, E, and consequently within the scope of the claim; and that the claim should be construed to read as follows: "An endless traveling belt, a device extending across it to change the direction of the cans, an arm swinging over the belt," etc. In the appellants' ma

chine the device which removes the cans from the carrying belt, and places them upon the plunger, is a wheel fixed upon a central axis, rotating in a circle above the carrying belt. Its periphery is cut away so as to form four concave spaces, which, as the wheel rotates, catch the cans upon the carrying belt, and carry them in a direction at right. angles thereto, and place them on the plungers. It operates to change the direction of the moving can, and to remove it from the belt, but in the operation there is no perceptible pause in the movement of the can. In the appellee's machine the cans are removed from the belt by the swinging arms, which take the cans after they have been intercepted in their forward movement on the traveling belt by the stop, E, and have been brought to a rest, and deflects them to the plunger. The trial court held that the stop bar, E, is an element of claim 1 which is entirely dispensed with in the appellants' machine, and that thereby infringement of that claim is avoided. Upon a careful consideration of the claim and of the evidence, we are not convinced that this was error. While the wheel which the appellant uses performs the function of the appellee's swinging arms, we think it cannot be construed to perform in addition to that function the office performed by a stop, E, extending across the belt, which in the appellee's patent is described as a rigidly fixed bar, without giving to the combination a more liberal construction than, in our judgment, it is entitled to, in view of the fact that none of the devices used in the combination was original with Jensen.

Claim 3 covers the combination of a transverse belt with the feeder having projecting arms, between which the cans are received from the belt, and the actuating devices by which the motions of the feeder are produced substantially as in the patent described. The feeder in the appellee's patent, designated F, is a straight back, with four arms projecting at right angles forming three pockets. It is attached to three cranks, which rotate, giving it an eccentric, sweeping motion. The cans, having been carried by the traveling belt to the stop, E, remain stationary; the belt continuing its motion beneath them. The feeder, in this sweeping movement, catches the can in the first pocket, between the first pair of arms, and pushes it at right angles to the line of the belt travel, moves it a short distance, and then recedes, leaving the can stationary until the next sweep, when it is received in the middle pocket, and moved upon the plunger, S, which is rigidly fixed in the center of the machine, but which moves vertically so as to push the can upward into its cap, and, to descend after the can is headed. By the next movement of the feeder, the can is received into the third pocket thereof, and moved off the plunger. In the appellants' machine, when the can is carried by the wheel, 36, and is brought into position on the plunger, its function is completed. It does not afterwards attach the can. Now, it is true that in its operation the feeder, F, in the appellee's machine, performs a function not accomplished by the wheel, 36, of the appellant's machine. It does all that is done by the wheel, and more. But what is the scope of the appellee's claim? It covers the transverse belt, the feeder having projecting arms, between which the cans are received from the belt, and the actuating device. No claim is made for the further function of removing the can from the plunger